Department of Education Partners with Health & Human Services to Release Proposed Rule Making for IDEA

By William J. Zee & Megan E. Johnson

May 19, 2023

Earlier this week, the U.S. Departments of Education (ED) and Health and Human Services (HHS) released a Notice of Proposed Rule Making under the Individuals with Disabilities Education Act (IDEA). The proposed rule aims to “streamline Medicaid services consent provisions” for a student’s individualized education plan (IEP). This announcement came with new guidance and approval of two states’ plan amendments allowing Medicaid to pay for school health care services. The three-part announcement supports the Biden Administration’s national mental health strategy.

The ED Secretary intends to remove the requirement to obtain parental consent prior to accessing a student’s public benefits or insurance through an amendment to IDEA Part B. With the consent requirement removed, a public agency would be able to use public benefits to pay for a student’s IDEA services.

In its release, the ED cites the lack of comparable consent requirements to access public benefits for children without disabilities. According to the ED, removing the consent requirement for students with disabilities would, “ensure equal treatment of both groups of children.”

The comment period for the proposed rule is open until August 1, 2023 in the Federal Register.

The Appel, Yost & Zee Education Law Group will continue to update clients on the proposed rule and guidance pertaining to its implementation.

Should you have any questions regarding special education or the public comment process, please do not hesitate to contact William J. Zee or any of the attorneys in the Appel, Yost & Zee Education Law Group.